État du Grand-duché de Luxembourg and Administration de l'enregistrement et des domaines v Navitours SARL.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:608
• Date: 01 August 2022
• Docket Number: C-294/21
• Celex Number: 62021CJ0294
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

1 August 2022 (*)

(Reference for a preliminary ruling – Taxation – Value added tax (VAT) – Sixth Council Directive 77/388/EEC – Article 2(1) – Scope – Taxable transactions – Article 9(2)(b) – Place where transport services are supplied – Tourist trips on the Moselle – River subject to condominium status)

In Case C‑294/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Cour de cassation (Court of Cassation, Luxembourg), made by decision of 6 May 2021, received at the Court on 10 May 2021, in the proceedings

État luxembourgeois,

Administration de l’enregistrement, des domaines et de la TVA

v

Navitours Sàrl,

THE COURT (First Chamber),

composed of A. Arabadjiev, President of the Chamber, L. Bay Larsen, Vice-President of the Court, acting as Judge of the First Chamber, I. Ziemele, P.G. Xuereb and A. Kumin (Rapporteur), Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Navitours Sàrl, by C. Kaufhold, lawyer,

– the Luxembourg Government, by A. Germeaux and T. Uri, acting as Agents, and by F. Kremer, lawyer,

– the German Government, by J. Möller and P.-L. Krüger, acting as Agents,

– the European Commission, by A. Armenia and V. Uher, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 7 April 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2(1) and Article 9(2)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended by Council Directive 91/680/EEC of 16 December 1991 (OJ 1991 L 376, p. 1) (‘the Sixth Directive’).

2 The request has been made in proceedings between the État luxembourgeois (‘Luxembourg State’) and the administration de l’enregistrement et des domaines et de la TVA (Registration Duties, Estates and VAT Authority, Luxembourg) (‘the Luxembourg Tax Authority’) and Navitours Sàrl concerning the treatment, as regards value added tax (VAT), of the tourist navigation services carried out by Navitours on the Moselle.

Legal context

International law

3 Under Article 1(1) of the Treaty between the Grand Duchy of Luxembourg and the Federal Republic of Germany on the demarcation of the joint border between those two States, signed in Luxembourg on 19 December 1984 (‘the Treaty of 19 December 1984’):

‘Wherever the Moselle, the Sûre and the Our form the border, according to the Treaty of 26 June 1816, they constitute a joint territory under the joint sovereignty of the two Contracting States.’

4 Article 5(1) of that Treaty provides:

‘the Contracting States shall settle matters concerning the law applicable in the joint territory under joint sovereignty by means of an additional agreement.’

European Union law

5 The Sixth Directive was repealed and replaced, from 1 January 2007, by Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1). However, given the date of the facts of the dispute in the main proceedings, those proceedings remain governed by the Sixth Directive.

6 Under Article 2(1) of the Sixth Directive, ‘the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such’ was subject to VAT.

7 Article 3(1) to (3) of the Sixth Directive provided:

‘1. For the purposes of this Directive, the following definitions apply:

– “territory of a Member State”: shall mean the territory of the country as defined in respect of each Member State in paragraphs 2 and 3,

…

2. For the purposes of this Directive, the “territory of the country” shall be the area of application of the Treaty establishing the European Economic Community as stipulated in respect of each Member State in Article 227.

3. The following territories of individual Member States shall be excluded from the “territory of the country”:

– Federal Republic of Germany:

– the Island of Heligoland,

– the territory of Büsingen,

…’

8 Article 9 of the Sixth Directive provided:

‘1. The place where a service is supplied shall be deemed to be the place where the supplier has established his business or has a fixed establishment from which the service is supplied or, in the absence of such a place of business or fixed establishment, the place where he has his permanent address or usually resides.

2. However:

…

(b) the place where transport services are supplied shall be the place where transport takes place, having regard to the distances covered;

…’

The dispute in the main proceedings and the question referred for a preliminary ruling

9 The Luxembourg company Navitours provides tourist navigation services on the stretch of the Moselle over which the Federal Republic of Germany and the Grand Duchy of Luxembourg exercise their joint sovereignty under Article 1 of the Treaty of 19 December 1984 (‘the German-Luxembourg Condominium’). On account of that situation, Navitours had, for many years, been regarded by the Luxembourg Tax Authority as falling outside the scope of VAT, with the result that the Luxembourg Tax Authority had not sought the payment of VAT on the sale of passenger transport tickets by Navitours.

10 On 5 August 2015, that tax authority issued, of its own motion, tax notices relating to Navitours’ turnover for the years 2004 and 2005, by which the transport services carried out by Navitours were considered to be subject to VAT.

11 Those tax notices followed a judgment of the Cour d’appel (Court of Appeal, Luxembourg), of 10 July 2014, delivered in legal proceedings between Navitours and that tax authority relating to the VAT treatment of the acquisition of a vessel by Navitours. According to that judgment, the VAT on passenger transport services in the German-Luxembourg Condominium may be collected either by the Grand Duchy of Luxembourg or by the Federal Republic of Germany. In the...